Whittingdale – missing privacy points.

A lot has been written about the current ‘scandal’ concerning John Whittingdale, the Culture Secretary, and his relationship with a woman described as a sex worker. Many questions have been asked – not least why the press didn’t publish the story until effectively forced into it by a combination of online media, social media, and the pressure group Hacked Off. Was the story suppressed as a result of some secret deal? Was it being held over Whittingdale’s head to stop him from bringing forward stronger regulation of the press? Was it being used as leverage by Murdoch and others? As the Labour’s shadow cabinet minister Chris Bryant put it, “It seems the press were quite deliberately holding a sword of Damocles over John Whittingdale.”

However interesting these questions and the answers to them might be, they rather miss some key privacy points – and indeed the point of privacy, and the problems with the way that the press operates. The focus has been on John Whittingdale as a politician, and on the woman concerned as a sex worker.Both of them, however, are people. Human beings. Not just a politician and a sex worker. And people need and deserve privacy.

In relation to the press, the focus has been on whether or not they publish the story – but the publication is only the last part of the process, and far from the only important part of the process. Privacy is not just invaded when a story about someone’s private life is published, it is invaded through the process that the story is obtained – and in this case, that part of the invasion of privacy had a significant impact. It was the press, in practice, who broke up the relationship. They dug into Whittingdale’s private life, found out who he was in a relationship with, and then told him. By Whittingdale’s own account, when he discovered what her profession was, he broke off the relationship.

We need to think about that a little. The press invaded the privacy of two individuals who were not doing anything illegal, and broke up their relationship. Consenting adults, in a relationship, had that relationship broken up.

Does the fact that the woman involved was a sex worker mean that’s OK? Are sex workers not allowed to have private lives? To have relationships? To have any rights at all?

The press should not be getting up on their high horse and complaining that they’re being attacked for doing exactly what Leveson etc told them they should do by not publishing the story – because their actions in obtaining the story were deeply damaging in the first place.

Hacked Off, however, should also not be proud of their own actions in forcing this story out into the public domain – and certainly not without considering, and considering very seriously, the rights of both John Whittingdale and the woman concerned. The latter seems to have been treated as just a prop in a big political story, by almost everyone. That really should not be acceptable.

UPDATE AND AMENDMENT (3 May 2016)

Evan Harris of Hacked Off has replied to my piece – his full comment is below. This is the substantial part of his response:

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“It is totally incorrect for you say – without any source – to say that “the press was “effectively forced into” publishing the story “by a combination of online media, social media, and the pressure group Hacked Off.” This was an assertion made by the Daily Mail, the Times, the Telegraph and the Sun but with never a shred of evidence to back it up.

It seems the allegations had been on twitter for several months and Hacked Off never tweeted about it nor re-tweeted any of those tweets. The story (and allegations of the press withholding publication for political not ethical reasons ) was then published on Byline.com on 1st April. There was no comment, tweet or link from Hacked Off. On 10th April, Jim Cusick, a senior broadsheet journalist, then published a more detailed story – with sources for the allegations of political motivations for non-publication – on Byline.com and Open Democracy. Hacked Off published a blog-post that evening commenting on the allegations of a “cover-up”, but which did not repeat the personal matters.

Our next public comments only occurred after publication of the same allegations of political reasons behind press non-publication by Private Eye and Newsnight. It was Private Eye and the BBC that either embarrassed the newspapers into publication or legitimised their doing so, with the Mail on Sunday producing a 2 page spread with new personal life allegations (mostly with little public interest justification of itself)

I am surprised that you repeat attacks on us made by the press without providing (or even linking to) any justification. For the readers of your excellent blog here is our approach http://www.pressgazette.co.uk/content/hacked-why-we-are-not-hypocrites-over-stance-john-whittingdales-privacy.”

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I would like to confirm that I agree with most of what Evan says – and that my suggestion of the press being ‘effectively forced into publishing the story’ was really about Byline and the social media, not about Hacked Off, and that Hacked Off did not repeat or mention the personal issues and private matters.

I remain concerned, however, that the privacy of the woman concerned has been treated – not by Hacked Off directly – as collateral damage, and that her position has been largely ignored, making the story only about Whittingdale. Again, I do not mean this to be about Hacked Off, and can see all too well how certain elements of the press have tried to use this as yet another tool to try to undermine Hacked Off as an organisation.

I would also like to add that as the Hillsborough verdict has emphasised, the position of the press in our society remains one that needs close and careful consideration, and that Hacked Off have played and continue to play a key part in debate over press ethics and press activities. Personally, I think that ‘Leveson 2’, examining the relationship between the press and the police, really needs to happen and happen soon.

3 May 2016

Panama, privacy and power…

David Cameron’s first reaction to the questions about his family’s involvement with the Mossack Fonseca leaks was that it was a ‘private matter’ – something that was greeted with a chorus of disapproval from his political opponents and large sections of both the social and ‘traditional’ media. Privacy scholars and advocates, however, were somewhat muted – and quite rightly, because there are complex issues surrounding privacy here, issues that should at the very least make us pause and think. Privacy, in the view of many people, is a human right. It is included in one form or another in all the major human rights declarations and conventions. This, for example, is Article 8 of the European Convention on Human Rights:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

Everyone. Not just the people we like. Indeed, the test of your commitment to human rights is how you apply them to those who you don’t like, not how you apply them to those that you do. It is easy to grant rights to your friends and allies, harder to grant them to your enemies or those you dislike. We see how many of those who shout loudly about freedom of speech when their own speech is threatened are all too ready to try to shut out their enemies: censorship of extremist speech is considered part of the key response to terrorism in the UK, for example. Those of us on the left of politics, therefore, should be very wary of overriding our principles when the likes of David Cameron and George Osborne are concerned. Even Cameron and Osborne have the right to privacy, we should be very clear about that. We can highlight the hypocrisy of their attempts to implement mass surveillance through the Investigatory Powers Bill whilst claiming privacy for themselves, but we should not deny them privacy itself without a very good cause indeed.

Privacy for the powerful?

And yet that is not the whole story. Rights, and human rights in particular, are most important when used by the weak to protect themselves from the powerful.The powerful generally have other ways to protect themselves. Privacy in particular has at times been given a very bad name because it has been used by the powerful to shield themselves from scrutiny. A stream of philandering footballers have tried to use privacy law to prevent their affairs becoming public – Ryan Giggs, Rio Ferdinand and John Terry. Prince Charles’ ultimately unsuccessful attempts to keep the ‘Black Spider Memos’ from being exposed were also on the basis of privacy. The Catholic Church covered up the abuses of its priests. Powerful people using a law which their own kind largely forged is all too common, and should not be accepted without a fight. As feminist scholar Anita Allen put it:

“[it should be possible to] rip down the doors of ‘private’ citizens in ‘private’ homes and ‘private’ institutions as needed to protect the vital interests of vulnerable people.”

This argument may have its most obvious application in relation to domestic abuse, but it also has an application to the Panama leaks – particularly at a time when the politics of austerity is being used directly against the vital interests of vulnerable people. Part of the logic of austerity is that there isn’t enough money to pay for welfare and services – and part of the reason that we don’t have ‘enough’ money is that so much tax is being avoided or evaded, so there’s a public interest in exposing the nature and scale of tax avoidance and evasion, a public interest that might override the privacy rights of the individuals involved.

How private is financial information?

That brings the next question: should financial or taxation information be treated as private, and accorded the strongest protection? Traditions and laws vary on this. In Norway, for example, income and tax information for every citizen is publicly available. This has been true since the 19th century – from the Norwegian perspective, financial and tax transparency is part of what makes a democratic society function.

It is easy to see how this might work – and indeed, an anecdote from my own past shows it very clearly. When I was working for one of the biggest chartered accountancy firms back in the 80s, I started to get suspicious about what had happened over a particular pay rise – so I started asking my friends and colleagues, all of whom had started with the firm at the same time, and progressed up the ladder in the same way, how much they were earning, I discovered to my shock that every single woman was earning less than every single man. That is, that the highest paid woman earned less than the lowest paid man – and I knew them well enough to know that this was in no way a reflection of their merits as workers. The fact that salaries were considered private, and that no-one was supposed to know (or ask) what anyone else was earning, meant that what appeared to me once I knew about it to be blatant sexism was kept completely secret. Transparency would have exposed it in a moment – and probably prevented it from happening.

In the UK, however, privacy over financial matters is part of our culture. That may well be a reflection of our conservatism – if functions in a ‘conservative’ way, tending to protect the power of the powerful – but it is also something that most people, I would suggest, believe is right. Indeed, as a privacy advocate I would in general support more privacy rather than less. It might be a step too far to suggest that all our finances should be made public – but not, perhaps, that the finances of those in public office should be private. The people who, in this case, are supporting or driving policies should be required to show whether they are benefiting from those policies – and whether they are being hypocritical in putting those policies forward. We should be able to find out whether they personally benefit from tax cuts or changes, for example, and whether they’re contributing appropriately when they’re requiring others to tighten their belts.

I do not, of course, expect any of this to happen. In the UK in particular the powerful have far too strong a hold on our politics to let it happen. That then brings me to one more privacy-related issue exposed by the Panama papers. If there is no legal way for information that is to the public benefit to come out, what approach should be taken to the illegal ways that information is acquired. There have been many other prominent examples – Snowden’s revelations about the NSA, GCHQ and so on, Hervé Falciani’s data from HSBC in Switzerland in particular – where in some very direct ways the public interest could be said to be served by the leaks. Are they whistleblowers or criminals? Spies? Should they be prosecuted or cheered? And then what about other hackers like the ‘Impact Team’ who hacked Ashley Madison? Whether each of them was doing ‘good’ is a matter of perspective.

Vulnerability of data…

One thing that should be clear, however, is that no-one should be complacent about data security and data vulnerability. All data, however it is held, wherever it is held, and whoever it is held by, is vulnerable. The degree of that vulnerability, the likelihood of any vulnerability being exploited and so forth varies a great deal – but the vulnerability is there. That has two direct implications for the state of the internet right now. Firstly, it means that we should encourage and support encryption – and not do anything to undermine it, even for law enforcement purposes. Secondly, it means that we should avoid holding data that we don’t need to hold – let alone create unnecessary data. The Investigatory Powers Bill breaks both of those principles. It undermines rather than supports encryption, and requires the creation of massive amounts of data (the Internet Connection Records) and the gathering and/or retention of even more (via the various bulk powers). All of this adds to our vulnerability and our risks – something that we should think very, very hard before doing. I’m not sure that thinking is happening.